From the Editor’s Keyboard

Are judges in Sierra Leone and England punching above their weight?

8 November 2016 at 05:36 | 1603 views

Opinion based on Sierra Leone High Court judgment handed down on 02/11/2016 and England High Court judgment handed down on 03/11/2016)

By Hassan Morlai, Guest Writer, London, UK.

In boxing, a fighter who punches above his weight is in essence a fighter in a lower weight division fighting another boxer in a higher weight division. In such circumstance, the fighter in the higher weight division, in all likelihood, is more dominant with greater power to defeat the fighter in the lower weight division.

The title of this opinion has been drafted deliberately in similar terms but does not pity judges over government ministers or parliamentarians. What I really wanted to discuss is whether judges in Sierra Leone and England (following two recent High Courts’ decisions handed down this week) have the constitutional power to decide those cases in the way they did.

A rudimentary glance at the constitutional doctrine of separation of powers will tell you that the three arms of government have distinct and separate powers of government. The parliament or the legislature’s role is to make laws which create rights and responsibilities for citizens. The ministers of state or the executive branch of government execute or carries out the laws made by parliament. And judges, sitting as the judicial arm of government adjudicate and determine disputes arising from the execution of the laws of the state. In sensu stricto form of separation of powers, judges like ministers and parliamentarians all have a legitimate claim to carry out their functions in the interest of the state (on behalf of the people) without having to defer to the powers of the other arms of government (subject to checks and balances; a doctrine which is outside the scope of this opinion).

Now let us look at what judges in Sierra Leone did on 2 November 2016 and those in England did on 3 November 2016 and decide whether they were punching above their weight (ie exercising powers they do not possess) or were simply carrying out their constitutional functions as an arm of government.

Sitting at the High Court in Freetown, Sierra Leone on 2 November 2016, Justice Alan B. Halloway ruled that Octea Ltd, a diamond mining company operating in Sierra Leone was liable to pay a citizen of Sierra Leone (Ibrahim Sorie Kamara, former President of Octea Ltd) his full end of employment benefits totally US$231,000.00 (two hundred and thirty one thousand United States dollars). Octea Ltd had (erroneously) argued that as it was not incorporated in Sierra Leone but in the British Virgin Islands; it had not been properly issued with proceedings; and therefore the default judgment made against it should be set aside. In essence, Octea Ltd claimed that it should not have been sued in the courts of Sierra Leone and that the judges had no jurisdiction to determine the case against it.

It appears that Octea Ltd was emboldened to make such outlandish claim following a legal victory it secured earlier in the year, on 7 April 2016, before Justice Bintu Alhadi of The Fast Track Commercial Court in Freetown. Justice Alhadi had ruled that Octea Ltd was not a registered company in Sierra Leone and did not own a mining licence to operate in the country, and therefore was not liable to pay property tax to Koidu City Council. Octea Ltd is a multinational corporation. It operates in Sierra Leone through its Sierra Leonean partner company, Kiodu Holdings Ltd. Koidu Holdings Ltd had received a Sierra Leone Parliament approved exemption in 2005 and 2010 which exempted it from paying any form of taxes in Sierra Leone. It appears Justice Alhadi had used the doctrine of corporate legal personality and corporate veil (from the seminal case of Salomon v Salomon (1897)) to distinguish Octea Ltd (a non-registered company in Sierra Leone) from its partner, Koidu Holdings Ltd (a registered company in Sierra Leone) which was the beneficiary of the tax exemption. As such although Octea Ltd operates in Sierra Leone as a partner of Koidu Holdings Ltd, but Octea Ltd itself was not the holder or beneficiary of the diamond mining licence in Sierra Leone and was therefore not liable to tax in Sierra Leone.

This bizarre decision was more or less corrected (indirectly) by Justice Halloway when he ruled that Octea Ltd was liable to pay end of employment services benefit to Ibrahim Sorie Kamara irrespective of the fact that Octea Ltd was not the beneficiary of any diamond mining licence in Sierra Leone or was not registered in Sierra Leone but was indeed conducting business in Sierra Leone.

Call it what you may – judicial activism, judicial usurpation of parliamentary powers or what have you – Justice Halloway must be credited for deciding the case against Octea Ltd in the way he did. This is what an independent judiciary ought to do as a matter of course and not as an isolated case. In the light of this decision, one wonders why Justice Alhadi’s decision in April 2016 was so quite different.

Talking about an independent judiciary, the judges in England’s High Court in London also did what the constitutional doctrine of separation of powers requires them to do. On 23 June 2016, the people of the United Kingdom, through a referendum, stated that they wanted the UK to leave the European Union. The government of Prime Minister Theresa May took this as authority that the Crown (acting through the executive arm of government) was entitled to use prerogative powers to trigger Britain’s exit (Brexit) from the European Union by giving notice under Article 50 of the Treaty of the European Union 2008 without the UK Parliament having a say or vote on the issue. Two British citizens, Gina Miller and Deir Tozetti Dos Santos, challenged the government’s proposed use of prerogative powers as unconstitutional. Gina and Deir’s main argument was that the European Communities Act of 1972 passed by the British Parliament gave British citizens certain rights such as the right to vote in European Union elections. If by leaving the EU, British citizens will be losing some of the rights granted to them by an Act of Parliament, it is therefore a constitutional requirement that the loss of those rights must be by a similar Act of Parliament and not by the exercise of an executive prerogative power.

The High Court judges, Lord Thomas (Lord Chief Justice), Sir Terence Etherton (Master of the Rolls) and Lord Justice Sales agreed that the executive arm of government did not have power under the Crown’s prerogative to give notice pursuant to the Treaty of the European Union 2008 Article 50 for the UK to withdraw from the EU without parliament (see R (on the application of (1) Gina Miller (2) Deir Tozetti Dos Santos) (Claimants) v Secretary of State for Exiting the European Union (Defendant) & (1) Grahame Pigney & ORS (2) AB, KK, PR & Children (Interested Parties) & George Birnie & ORS (Intervener) [2016] EWHC 2768 (Admin) – judgement handed down today, 03/11/2016).

So did LCJ Thomas, Sir Terence MR and Sales LJ punched above their weight for deciding this case the way they did on 3 November 2016. I don’t think so. This is a decision that vindicated the constitutional doctrine of separation of powers which is closed linked to the doctrine of parliamentary supremacy or sovereignty in the UK. It was the UK Parliament that enacted the European Communities Act 1972 that took the UK in to the EU and granted UK citizens certain rights. It is unconstitutional for the executive arm of government to take away those rights by triggering Britain’s exit from the EU without Parliament saying so. The judiciary is indeed the appropriate arm of government to adjudicate this matter as it has done.

So like the judge in Sierra Leone in the Ibrahim Sorie Kamara v Octea Ltd judgment and his English counterparts, they should be proud of themselves for being bold, courageous and feisty in standing up for their respective citizens’ rights in front of an all power executive arm of government and sometimes parliaments that forget that they are the people’s assemblies and should always seek to protect and advance the rights of their citizens.

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